Environmental Policy In India and the Role of Judiciary in Imparting Environmental Justice

1
Environmental Policy In India and the Role of
Judiciary in Imparting Environmental Justice

• - Justice Hima
  Kohli, High Court of Delhi, India

2

• What of thee I dig out, let that quickly grow
  over, Let me not hit thy vitals, or thy heart.
• -Atharva Veda

3
The Underlying Causes of Environmental
Degradation in India

• Social Factors
• Economic Factors
• Institutional Factors

4
Social Factors

• Population
• Poverty
• Urbanization

5
Economic Factors

• Non-existent or poorly functioning markets for
  environmental goods and services
• Market distortions created by price controls and
  subsidies
• The manufacturing technology adopted by most of
  the industries which generally is based on
  intensive resource and energy use.
• Expansion of chemical based industry
• Growing transport activities
• Expansion of port and harbour activities.

6
Institutional Factors

• Lack of awareness and infrastructure makes
  implementation of most of the laws relating to
  environment, extremely difficult and ineffective.

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Environmental Policy In India

• Ancient India
• The Arthashastra by Kautilya, written as early as
  between 321 and 300 BC, contained provisions
  meant to regulate a number of aspects related to
  the environment.
• The fifth pillar edict of Emperor Ashoka also
  contains such regulations

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Environmental Policy In India

• During the British Reign in India
• Shore Nuisance (Bombay and Kolaba) Act, 1853
• The Indian Penal Code, 1860
• The Indian Easements Act, 1882
• The Fisheries Act, 1897
• The Factories Act, 1897
• The Bengal Smoke Nuisance Act, 1905
• The Bombay Smoke Nuisance Act, 1912
• The Elephants Preservation Act, 1879
• Wild Birds and Animals Protection Act, 1912

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Environmental Policy In India

• Modern India
• National Council for Environmental Policy and
  Planning was set up in 1972 which was later
  evolved into Ministry of Environment and Forests
  (MoEF) in 1985.
• MoEF and the pollution control boards (CPCB i.e.
  Central Pollution Control Board and SPCBs i.e.
  State Pollution Control Boards) together form the
  regulatory and administrative core of the sector.
  

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Environmental Policy In India

• The Policy Statement for Abatement of Pollution
  and the National Conservation Strategy and Policy
  Statement on Environment and Development were
  brought out by the MoEF in 1992.
• The EAP (Environmental Action Programme) was
  formulated in 1993 with the objective of
  improving environmental services and integrating
  environmental considerations into development
  programmes.

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Environmental Policy In India

• National Environment Policy, 2006
• It the first initiative in strategy-formulation
  for environmental protection in a comprehensive
  manner.
• It undertakes a diagnosis of the causative
  factors of land degradation with a view to
  flagging the remedial measures required in this
  direction.
• It recognizes that the relevant fiscal, tariffs
  and sectoral policies need to take explicit
  account of their unintentional impacts on land
  degradation.

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Environmental Policy In India

• National Environment Policy, 2006 (contd.)
• The solutions offered to tackle the problem
  comprise adoption of both, science-based and
  traditional land-use practices, pilot-scale
  demonstrations, large scale dissemination,
  adoption of Multi-stakeholder partnerships,
  promotion of agro-forestry, organic farming,
  environmentally sustainable cropping patterns and
  adoption of efficient irrigation techniques.

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Constitutional Framework

• Article 21 - Fundamental Rights
• Article 48A - Directive Principles of State
  Policy
• Article 51A(g) - Fundamental Duties

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Legislative Framework

• Water (Prevention and Control of Pollution) Act,
  1974
• Water (Prevention and Control of Pollution) Cess
  Act, 1977
• Air (Prevention and Control of Pollution) Act,
  1981
• Atomic Energy Act of 1982
• Motor Vehicles Act ,1988
• The Wildlife (Protection) Act, 1972
• The Forest (Conservation) Act, 1980
• Environment (Protection) Act, 1986 (EPA)
• The National Environment Appellate Authority Act,
  1997
• Public Liability Insurance Act (PLIA), 1991
• National Environment Tribunal Act, 1995

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Environment Impact Assessment (EIA)
There are two types of EIA models- the statutory
model which makes the assessment of impact
compulsory under an enacted law, or a delegated
legislation, and the administrative model under
which an administration exercises its discretion
to find out whether an impact study is necessary.
Till 1992, India was following the administrative
model of EIA.
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Environment Impact Assessment (EIA) (contd.)
On 27th January, 1994 a notification was issued
dealing with mandatory EIA. The notification
requires project proponent to submit an EIA
report, and environment management plan, details
of the public hearing and a project report to the
impact assessment agency for clearance, further
review by a committee of experts in certain
cases. By the amendment in the year 1997, public
hearing was made compulsory before impact
assessment was finalized.
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Role of Judiciary in Imparting Environmental
Justice

• The Judiciary has come up with the judge-driven
  implementation of environmental administration
  in India.
• It has isolated specific environmental law
  principles upon interpretation of Indian Statutes
  and Constitution.
• Public Interest Litigations (PILs) which is the
  result of the relaxation of the locus standi
  rules by the judiciary, is the characteristic
  feature of the environmental litigation in India.

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Role of Judiciary in Imparting Environmental
Justice

• Disputes relating to environment are treated as
  cases related to violation of fundamental rights,
  rather than claims under law of torts.
• It has been held that the Supreme Court and the
  High Courts can be directly approached under
  Article 32 and Article 226 of the Constitution of
  India in case of matters relating to environment.

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Role of Judiciary in Imparting Environmental
Justice (Contd.)

• The orders of the Supreme Court and the High
  Courts cover a wide range of areas including air,
  water, solid waste, hazardous wastes, forests,
  mining activities, and architectural treasures.
• Policy Statements of the government, which
  otherwise are not enforceable in Courts, have
  been used as aids by the Judges for interpreting
  environmental statutes and for spelling out
  obligations of the Government.

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Doctrines Evolved by Courts

• Public Trust Doctrine
• M.C.Mehta v. Kamal Nath, (1996) 1 SCC 38 In a
  case where an attempt was made to divert flow of
  a river for augmenting facilities at a motel, it
  was held that State and its instrumentalities as
  trustees have a duty to protect and preserve
  natural resources.
• MI Builders Pvt. Ltd. v. Radhey Shyam Sahu, AIR
  1996 SC 2468 a city development authority was
  asked to dismantle an underground market built
  beneath a garden of historical importance.

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Doctrines Evolved by Courts

• Precautionary Principle
• Vellore Citizens Welfare Forum v. UOI, AIR 1996
  SC 2718 The principle was adopted to check
  pollution of underground water caused by
  tanneries in Tamil Nadu.
• Narmada Bachao Andolan v. UOI, AIR 2000 SC 375
  The Supreme Court held that the precautionary
  principle could not be applied to the decision
  for building a dam whose gains and losses were
  predictable and certain.

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Doctrines Evolved by Courts

• Polluter Pays Principle
• The object of this principle is to make the
  polluter liable for the compensation to the
  victims as also for the cost of restoring of
  environmental degradation.
• Vellore Citizens Welfare Forum v. UOI, AIR 1996
  SC 2718 It was held that the precautionary
  principle and the polluter pays principle are
  part of environmental law of the country.

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Doctrines Evolved by Courts

• Absolute Liability Principle
• M. C. Mehta v. UOI, AIR 1987 SC 1086 (Oleum Gas
  Leak Case) The principle was adopted to
  compensate victims of pollution caused by
  inherently dangerous industries.
• Narmada Bacho Andolan v. UOI, AIR 2000 SC 375
  The Supreme Court held that the precautionary
  principle could not be applied to the decision
  for building a dam whose gains and losses were
  predictable and certain.

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Doctrines Evolved by Courts

• Sustainable Development
• M.C. Mehta v. UOI, AIR 1997 SC 734 (Taj Trapezium
  Case) while taking note of the disastrous
  effects that the emissions from the Mathura Oil
  Refinery had on the Taj Mahal, the Supreme Court
  applied the principle of sustainable development
  to the case, and apart from passing various
  directions, stepped in to execute and supervise
  the resultant actions.
• State of Himachal Pradesh v. Ganesh Wood
  Products, AIR 1996 SC 149, the Supreme Court
  invalidated forest based industry, recognizing
  the principle of inter-generational equity and
  sustainable development.

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Contribution of the Delhi High Court

• In a PIL pending before the Delhi High Court
  challenging the development of the common wealth
  games site on the riverbed and floodplain of the
  Yamuna, a Bench of two Judges hearing the matter,
  personally visited the site recently to see as to
  how much of the riverbed and floodplain had been
  acquired to build the Games Village, so that an
  appropriate order could be passed in the case and
  the infrastructural needs could be balanced with
  the environmental concerns.

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Contribution of the Delhi High Court

• Directions have been passed by the High Court in
  various PILs for clearing the river Yamuna of all
  encroachments and for demolition of the slums on
  its banks.
• In Enkay Plastics Pvt. Ltd. Vs. Union of India
  (UOI) and Ors., 2000(56)DRJ828, the High Court
  upheld the order of the Delhi Pollution Control
  Committee for closure of certain polluting
  industries, and held that the direction of close
  down the industry which is creating air pollution
  in residential areas.

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Contribution of the Delhi High Court

• In the case of Vimal Bhai v. UOI Ors., (W.P.(C)
  17682/2005, W.P.(C) 17683/2005, W.P.(C)
  17684/2005 decided on 29.5.2005), the Union of
  India and all its concerned functionaries were
  directed to take requisite steps for clearing the
  proposals related to the appointment of the
  Chairman of the Appellate Authority and other
  Technical Members and reconstitute the Authority
  within 45 days, under the National Environment
  Appellate Authority Act, 1997.

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The activist is not the man who says the river
is dirty.  The activist is the man who cleans up
the river Ross Perot

• 
  -Thank You!